Filed 3/25/14 Vega v. Valverde cA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ANTHONY AMADOR VEGA,

Plaintiff and Appellant,

v.

GEORGE VALVERDE, DIRECTOR OF 

THE CALIFORNIA DEPARTMENT OF 

MOTOR VEHICLES,

Defendant and Respondent.

 B247484

 (Los Angeles County

 Super. Ct. No. BS138101)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Luis A. Lavin, Judge. Affirmed.

Law Offices of Chad R. Maddox and Chad R. Maddox for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney 

General, Michael E. Whitaker and Bruce Reynolds, Deputy Attorneys General, for 

Defendant and Respondent.

_________________________
2

Plaintiff and appellant Anthony Amador Vega (Vega) appeals a judgment denying 

his petition for writ of mandate. (Code Civ. Proc., § 1094.5.) Vega’s petition sought to 

overturn a decision by the Department of Motor Vehicles (Department) imposing a oneyear suspension of his driving privilege for his refusal to complete a required chemical 

test to determine the alcohol content of his blood.

Vega does not dispute that he refused to undergo testing after being requested to 

do so by a peace officer, and that he was advised of the consequences of a refusal to 

submit to testing. Vega’s essential contention is that the record is insufficient to establish 

the sobriety checkpoint was conducted in accordance with constitutional guarantees.

We conclude Vega’s arguments are without merit and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts relating to Vega’s refusal to undergo chemical testing.

On April 30, 2011 at 12:40 a.m., Officer Rodney Castillo (Castillo) observed 

Vega driving into a DUI checkpoint that was being conducted by the Alhambra Police 

Department Traffic Division on Atlantic Boulevard and Beacon Street. Castillo was 

assigned to work the line detail to check for valid drivers’ licenses and verify that drivers 

were not driving under the influence of alcohol or drugs. After Castillo contacted Vega 

at the checkpoint and requested his driver’s license, Castillo observed Vega’s eyes were 

bloodshot and watery and he smelled a strong odor of alcohol emanating from the interior 

of the vehicle. Based on these indicia, Castillo asked Vega to step out of the vehicle so 

that Castillo could conduct a DUI investigation.

When Vega got out of the vehicle, he did not use the vehicle for balance or need 

any assistance or walk with an unsteady gait. However, when Castillo conducted a 

horizontal gaze nystagmus test on Vega, he showed a lack of smooth pursuit and tested 

positive for nystagmus. Castillo also conducted a Rhomberg test and observed Vega 

sway one to two inches in a circular motion. Vega estimated 16 seconds to be 30 

seconds. Vega performed the finger-to-nose test by touching his finger to his nose six 

times. Vega performed the one-leg extended test and did not hop, sway, use his arms for 

balance, or put his foot down on that test. Finally, Castillo conducted a walk-and-turn 
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test. Vega did not walk heel to-toe in both directions as required by the test. Vega

admitted to having two beers that night; his last drink was at 10:00 p.m. Castillo noted 

that Vega’s breath had a strong odor of alcohol.

Vega refused to take a Preliminary Alcohol Screening Test. After Vega refused to 

take said test, Castillo arrested him for violation of Vehicle Code section 23152(a)

(driving under the influence of alcohol). Castillo asked Vega to submit to a chemical 

test, which he also refused.

2. Administrative proceedings.

On April 30, 2011, the date of the arrest, the Department issued an administrative 

per se suspension of Vega’s driving privilege.

Vega challenged his suspension. The Department conducted hearings on 

January 30, 2012 and May 8, 2012.

Officer Castillo was a witness at the first session. He testified, inter alia, he was 

not involved in the background preparation or the criteria that went into setting up the 

sobriety checkpoint. His role was merely to serve as a line officer at the checkpoint. 

In conducting the checkpoint, “[w]e went every five cars, let five go, stop five cars, let 

five go.” That’s “what we usually do at the DUI checkpoints.”

There were no other witnesses. Vega did not attend the proceedings but was 

represented by counsel. There was no testimony at the brief second session, which 

consisted of closing arguments.

On June 8, 2012, the hearing officer issued a decision upholding the suspension 

of Vega’s driving privilege.

3. Superior court proceedings.

a. Vega’s petition for writ of mandate.

On June 22, 2012, Vega filed a petition for writ of mandate, seeking to overturn 

the Department’s decision. Vega contended he rebutted the constitutionality of the DUI 

checkpoint because Castillo did not have a neutral formula with which to conduct the 

checkpoint. Further, even if the DUI checkpoint were constitutional, Castillo lacked 

probable cause to arrest him for driving under the influence. Vega also argued the 
4

administrative record was incomplete because portions of the record were transcribed 

as “inaudible.”

b. Department’s opposition.

With respect to Vega’s challenge to the sobriety checkpoint, which is the focus of 

this appeal, the Department contended field officers are not involved in setting up the 

sobriety checkpoint. Case law recognizes the decision to establish a sobriety checkpoint 

is made by supervisory law enforcement personnel, not by field officers. (Ingersoll v. 

Palmer (1987) 43 Cal.3d 1321, 1341-1342 (Ingersoll).) Thus, Castillo could not be 

expected to “know the decisions regarding the checkpoint location, duration, etc., and 

therefore would not be qualified to testify to them. [Vega] failed to present any evidence 

from senior officers who established the checkpoint. It was his burden to do so. As a 

result, the Department’s hearing officer was entirely appropriate in deciding that the 

sobriety checkpoint was not at issue.”

c. Trial court’s ruling.

The matter was argued and submitted on February 19, 2013. Thereafter, the trial 

court ruled as follows:

The trial court found, inter alia, the weight of the evidence supported the 

conclusions that Vega was lawfully arrested, and that Castillo had reasonable cause to 

believe Vega was driving while under the influence of alcohol.

With respect to the pivotal issue on appeal concerning the propriety of the sobriety 

checkpoint, the trial court determined: “The weight of the evidence demonstrates that 

[Vega] did not rebut the presumption of the checkpoint’s legality by affirmative 

evidence. Contrary to [Vega’s] argument, the evidence in the administrative record 

demonstrates that Officer Castillo testified that the discretion of field officers was limited 

regarding who is to be stopped because of the application of a neutral formula. (AR 35) 

Indeed, Officer Castillo stated that the checkpoint stopped every five cars such that five 

cars would go through and the next five cars would be stopped. (Id.) Although Officer 

Castillo was not involved in the marketing, publication, or preparation of the checkpoint 

and other details surrounding the checkpoint, Officer Castillo’s lack of knowledge is not 
5

affirmative evidence that the checkpoint was unlawful pursuant to the holding in 

Arthur v. Department of Motor Vehicles [(2010) 184 Cal.App.4th 1199, 1206-1208

(Arthur) (affirmative evidence overcoming the presumption must be presented; that an 

officer was unaware of the formula applied at the checkpoint is not affirmative evidence 

sufficient to overcome the presumption).]

“[Vega’s] attempts to distinguish Arthur from the instant case are unavailing. 

While Officer Castillo testified to a neutral formula that was applied to the checkpoint, 

his lack of knowledge regarding other details such as the checkpoint’s publication and 

decision making at the supervisory level does not constitute affirmative evidence 

overcoming the presumption of the checkpoint’s legality. Moreover, unlike in Arthur, 

there is no evidence in the record that [Vega] attempted to obtain documents from the 

Alhambra Police Department or the DMV pertaining to the sobriety checkpoint. Indeed, 

although Petitioner requested, and received, a continuance to allow him to call other 

witnesses regarding ‘the Ingersoll criteria,’ he never called any witness at the subsequent 

hearing date on May 8, 2012. . . . [¶] In sum, the Court finds that [Vega] has not 

presented any affirmative evidence rebutting the presumptive legality of the checkpoint.”

As for Vega’s argument with respect to the hearing officer’s denial of a 

continuance, the trial court ruled that because Vega’s attorney did not have a copy of 

the subpoena that was allegedly sent but “ ‘rejected,’ ” the hearing officer did not abuse 

her discretion in denying Vega’s May 8, 2012 request to continue the hearing for a 

second time.

Finally, the trial court rejected Vega’s contention concerning the alleged 

inadequacy of the administrative record. “The Court finds that, despite a few portions of 

the transcript that were transcribed as ‘inaudible,’ the administrative record is sufficiently 

adequate for judicial review. In any event, most of the inaudible sections of the transcript 

were on the second day of the hearing, May 8, 2012, when no witness testified.”

On March 11, 2013, the trial court entered judgment denying the petition for writ 

of mandate. Vega filed a timely notice of appeal from the judgment.
6

CONTENTIONS

Vega contends: he rebutted the presumption that the checkpoint was 

constitutional; inaudible gaps in the administrative transcript requires the administrative 

decision to be set aside; and the Department abused its discretion in denying a 

continuance of the administrative hearing.

DISCUSSION

1. Standard of review.

When “a person petitions for a writ of mandate following an order suspending 

his or her driver’s license, the [trial] court is required to determine, based on the exercise 

of its independent judgment, whether the weight of the evidence supports the 

administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456; Code Civ. Proc., 

§ 1094.5) In making that determination, the [trial] court acts as a trier of fact; it has 

the power and responsibility to weigh the evidence and make its own determination 

about the credibility of witnesses. (Barber v. Long Beach Civil Service Com. (1996) 

45 Cal.App.4th 652, 658.) The administrative findings, however, are entitled to ‘a strong 

presumption of correctness,’ and ‘the party challenging the administrative decision bears 

the burden of convincing the court that the administrative findings are contrary to the 

weight of the evidence.’ (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)” 

(Arthur, supra, 184 Cal.App.4th at pp. 1204-1205, italics added.)

On appeal, “we review the record to determine whether the court’s findings are 

supported by substantial evidence. ‘ “ ‘We must resolve all evidentiary conflicts and draw 

all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.]

Where the evidence supports more than one inference, we may not substitute our 

deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual 

findings only if the evidence before the trial court is insufficient as a matter of law to 

sustain those findings. [Citation.]’ ” ’ (Lake v. Reed, supra, 16 Cal.4th at p. 457.)” 

(Arthur, supra, 184 Cal.App.4th at p. 1205.)
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2. General principles.

a. Sobriety checkpoints are a legitimate means of promoting public safety 

by deterring intoxicated persons from driving.

In Ingersoll, the Supreme Court “held that ‘within certain limitations,’

sobriety checkpoints may be operated without violating the Fourth Amendment to the

federal Constitution or the state Constitution. (Ingersoll, supra, 43 Cal.3d at p. 1325.)

In Ingersoll, the court rejected the argument that the validity of sobriety checkpoints 

should be analyzed under the standard set forth in In re Tony C. (1978) 21 Cal.3d 888, 

‘requiring an individualized suspicion of wrongdoing.’ (Ingersoll, supra, at p. 1327.) 

The Ingersoll court explained the primary purpose of a sobriety checkpoint is not to 

detect evidence of crime or arrest drunk drivers, but to ‘promote public safety by 

deterring intoxicated persons from driving on the public streets and highways.’

(Id. at p. 1328.) The court concluded the validity of sobriety checkpoints ‘is to be 

determined not by the standard pertinent to traditional criminal investigative stops, 

but rather by the standard applicable to investigative detentions and inspections 

conducted as part of a regulatory scheme in furtherance of administrative purpose.’ 

(Ibid.)” (Arthur, supra, 184 Cal.App.4th at p. 1205.)

Ingersoll court held “that ‘stops and inspections for regulatory purposes may be 

permitted if undertaken pursuant to predetermined specified neutral criteria.’ (Ingersoll, 

supra, 43 Cal.3d at p. 1335.) The court assessed the constitutionality of a sobriety 

checkpoint by ‘weighing the gravity of the governmental interest or public concern 

served and the degree to which the program advances that concern against the 

intrusiveness of the interference with individual liberty.’ (Id. at p. 1338.) The court 

explained that ‘[d]eterring drunk driving and identifying and removing drunk drivers 

from the roadways undeniably serves a highly important governmental interest’ (ibid.), 

and there is evidence sobriety checkpoints ‘do advance this important public goal.’ 

(Id. at p. 1339.)” (Arthur, supra, 184 Cal.App.4th at pp. 1205-1206.)
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b. Criteria for evaluating the lawfulness of a sobriety checkpoint.

In “ ‘examining the intrusiveness of such checkpoints, the Ingersoll court 

identified eight factors to “provide functional guidelines for minimizing the intrusiveness 

of the sobriety checkpoint stop.” [Citation.] These factors are: (1) decisionmaking at the 

supervisory level; (2) limits on discretion of field officers as to who is to be stopped; 

(3) maintenance of safety conditions; (4) reasonable location of the checkpoint; 

(5) a reasonable time and duration of the checkpoint; (6) indicia of the official nature 

of the roadblock; (7) the length and nature of the detention; and (8) advance publicity 

regarding each checkpoint. [Citation.]’ [Citation.] ‘The eight factors identified in 

Ingersoll provide “functional guidelines” to assess the intrusiveness of a checkpoint.” ’ 

[Citation.]” (Arthur, supra, 184 Cal.App.4th at p. 1206.)

c. Presumption of checkpoint’s validity; licensee has burden to 

rebut presumption.

Under Evidence Code section 664,1“it is presumed the checkpoint was 

operated consistent with Ingersoll. The official duty—setting up and operating the 

sobriety checkpoint—is presumed to have been regularly performed. [Citation.] 

Once the presumption attaches, it is then up to the licensee to attack the propriety of 

the checkpoint. [The licensee] must show there was ‘some irregularity’ in the sobriety 

checkpoint operation. [Citation.] Until [the licensee] does so, the constitutionality of 

the checkpoint is not at issue.” (Roelfsema v. Department of Motor Vehicles (1995) 

 

1

Evidence Code section 664 provides in relevant part: “It is presumed that 

official duty has been regularly performed.” The “rebuttable presumption under 

Evidence Code section 664 ‘effectuates the policy of relieving governmental 

officials from having to justify their conduct whenever it is called into question.’ 

(Jackson v. City of Los Angeles (1999) 69 Cal.App.4th 769, 782.)” (Arthur, supra, 

184 Cal.App.4th at p. 1206, fn. 3.) We “ ‘doubt that the Legislature intended to require 

the DMV to prove the constitutionality of each and every sobriety checkpoint, at every 

license revocation hearing, regardless of whether the issue had been raised.’ [Citation.]” 

(Id. at p. 1207, fn. 4.)
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41 Cal.App.4th 871, 880 (Roelfsema); accord, Arthur, supra, 184 Cal.App.4th at 

pp. 1206-1207.)

3. Trial court properly rejected Vega’s attack on the propriety of the checkpoint.

a. Trial court properly found that Vega failed to meet his burden to show 

some irregularity in the operation of the checkpoint.

As set forth above, the trial court found Vega failed to present “any affirmative 

evidence rebutting the presumptive legality of the checkpoint.” The record supports the 

trial court’s finding.

With respect to the propriety of the checkpoint, Vega’s argument is simply that 

Castillo, the officer who stopped him, “had no idea what, if any, neutral formula was 

used at the checkpoint when he stopped [Vega]. There is no documentary or testimonial 

evidence to establish that a neutral formula was used; therefore, the stop of [Vega] was 

unlawful.”

Vega’s argument fails because the Department did not have the initial burden to 

establish the propriety of the checkpoint. Pursuant to Evidence Code section 664, the 

official duty in “setting up and operating the sobriety checkpoint – is presumed to have 

been regularly performed.” (Roelfsema, supra, 41 Cal.App.4th at p. 880; accord, Arthur, 

supra, 184 Cal.App.4th at p. at p. 1206.) Therefore, Vega, as the licensee, had the initial 

burden to show some irregularity in the sobriety checkpoint operation. (Roelfsema, 

supra, at p. 880; Arthur, supra, at p. 1206.) Vega’s argument that Castillo lacked 

recollection, and thus could not establish the propriety of the checkpoint, was insufficient 

to rebut the presumption that official duty was regularly performed. To reiterate the trial 

court’s ruling, “Castillo’s lack of knowledge is not affirmative evidence that the 

checkpoint was unlawful.”

b. Trial court, sitting as a trier of fact, properly weighed and credited 

Castillo’s testimony.

Further, and in any event, Castillo’s testimony was sufficient to establish that 

neutral criteria were employed at the checkpoint.
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Vega’s argument that Castillo was incompetent to testify regarding the operation 

of the checkpoint is based on the following colloquy at the administrative hearing:

“MR. SPINDEL [Vega’s attorney]: And when you were in the line, so to speak, 

you were – you were not every fifth car, every sixth car, you were actually stopping every 

vehicle that came across you and asking for their license, correct?

“OFFICER CASTILLO: No. We went every five cars, let five go, stop five cars, 

let five go.

“MR. SPINDEL: . . . [N]ow, it doesn’t say anything there in your report about 

that, does it?

“OFFICER CASTILLO: No.

“MR. SPINDEL: Okay. So you have no documentation to support that as the 

protocol initiated or being used that night, correct?

“OFFICER CASTILLO: Correct.

“MR. SPINDEL: And it’s just your – your memory, correct?

“OFFICER CASTILLO: That’s what we usually do at the DUI checkpoints.

“MR. SPINDEL: Okay, motion to strike as non-responsive.

“[¶] . . . [¶] 

“HEARING OFFICER GARCIA: Okay. Granted, the response will be stricken.” 

(Emphasis added.)

As discussed, the role of the trial court herein was to exercise its independent 

judgment in ascertaining whether the weight of the evidence supported the administrative 

decision; in making its decision, the trial court was sitting as a trier of fact, with the 

power and responsibility to weigh the evidence and make its own determination as to the 

credibility of witnesses. (Arthur, supra, 184 Cal.App.4th at pp. 1204-1205.) The trial 

court was not confined by the hearing officer’s ruling to strike a nonresponsive answer 

because the role of the trial court is to exercise its independent judgment on the entire

record. (ReadyLink HealthCare, Inc. v. Jones (2012) 210 Cal.App.4th 1166, 1172 

[exercise of independent judgment requires trial court to review entire record to 

determine whether weight of the evidence supports administrative findings].)
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On this record, the trial court properly found “the evidence in the administrative 

record demonstrates that Officer Castillo testified that the discretion of field officers was 

limited regarding who is to be stopped because of the application of a neutral formula. 

(AR 35) Indeed, Officer Castillo stated that the checkpoint stopped every five cars such 

that five cars would go through and the next five cars would be stopped.”

We conclude the trial court properly weighed Castillo’s testimony to find “Castillo 

testified to a neutral formula that was applied to the checkpoint.”

4. No abuse of discretion in hearing officer’s denial of a second continuance.

At the end of the first hearing, on January 30, 2012, the Department granted a 

continuance to enable Vega to present additional evidence regarding the legality of the 

checkpoint and the arrest. However, Vega contends the Department violated his right to 

due process “when it failed to grant a second continuance when [his] law enforcement 

witness was unavailable for the second hearing” on May 8, 2012.

The administrative record reflects that at the May 8, 2012 session, Vega’s attorney 

requested a continuance at the commencement of the hearing on the ground the officer 

was unavailable. The hearing officer asked counsel: “Did you subpoena the officer to 

appear today?” Counsel responded he attempted to subpoena the officer, but the 

subpoena was “rejected.” The hearing officer then inquired, “And do you have copies of 

the subpoena that was sent to the agency to have the officer appear?” Counsel responded, 

“I do not have those available right now.” 

In the mandamus proceeding, Vega raised the issue of the hearing officer’s denial 

of a continuance. In that regard, the trial court ruled that because Vega’s attorney did not 

have a copy of the subpoena that was allegedly sent but “ ‘rejected,’ ” the hearing officer 

did not abuse her discretion in denying Vega’s May 8, 2012 request to continue the 

hearing for a second time.

We agree. On this record, given the inadequate showing made in support of the 

request for a continuance, we perceive no abuse of discretion in the hearing officer’s 

denial of Vega’s request for a second continuance.
12

5. No merit to Vega’s contention regarding the alleged inadequacy of the 

administrative record.

The transcript of the May 8, 2012 session contains the following transcriptionist’s 

note: “Audio volume was extremely low during this entire proceeding resulting in many 

inaudible designations. I transcribed it to the best of my ability to hear the words.”

Vega contends the Department has a duty to maintain an accurate record of the 

hearing, and because of the gaps in the transcript, the evidence is insufficient to sustain a 

finding that Vega’s witness was not lawfully subpoenaed. Vega’s position is that had the 

May 8, 2012 session been properly transcribed, it would establish the hearing officer 

abused her discretion in refusing a second continuance. 

In this regard, the trial court ruled, “despite a few portions of the transcript that 

were transcribed as ‘inaudible,’ the administrative record is sufficiently adequate for 

judicial review. In any event, most of the inaudible sections of the transcript were on the 

second day of the hearing, May 8, 2012, when no witness testified.”2

As discussed, the inability of Vega’s counsel to supply the hearing officer with a 

copy of the subpoena was a sufficient basis for the hearing officer to deny the request for 

a continuance.

Further, Vega has not shown what the inaudible portions of the transcript would 

have revealed. Vega did not identify the witness he attempted to subpoena, nor did he 

make an offer of proof as to the nature of said witness’s testimony. Vega simply would 

have this court speculate that a perfect transcript would lead to a result more favorable to 

him.

We conclude that irrespective of the gaps in the transcript of the May 8, 2012 

session, Vega failed to present any evidence to show an irregularity in the sobriety 

checkpoint. That is the beginning and the end of this case. Therefore, his contention 

with respect to the gaps in the administrative transcript is unavailing.

 

2

The transcript of the May 8, 2012 hearing amounts to seven pages. Following the 

denial of Vega’s request for a continuance, counsel presented closing arguments.
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DISPOSITION

The judgment denying Vega’s petition for writ of mandate is affirmed. 

The Department shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.